After many uncertain months throughout the last year, the Queensland Government has released a plan to action the COVID-19 vaccine however, the only question is, can an employer force an employee to take the vaccine?
The action plan for the vaccine’s is being rolled out in three phases:-
- Phase 1A: Frontline health care and quarantine workers, residents in care facilities – estimated population of 125k up to 250k doses
- Priority frontline health care workers and staff
- Priority quarantine and border workers:
- Aged care and disability care workers (vaccination rollout managed by the Australian Government Health department)
- Aged care and disability care residents (vaccination rollout managed by the Australian Government Health department)
- Phase 1B: Individuals with higher risks – estimated population of 1.049m up to 2.098m doses
- Elderly adults aged 70 years and over
- Other health care workers
- Aboriginal and Torres Strait Islander people over 55
- Younger adults with an underlying medical condition, including those with a disability
- Critical and high-risk workers including defence, police, fire emergency services and meat processing
- Phase 2A: Individuals with moderate risks – estimated population of 1.255m, up to 2.51m doses
- Adults aged 50-69 years
- Aboriginal and Torres Strait Islander people aged 18-54
- Other critical and high-risk workers
- Phase 2B: Rest of adult population – estimated population of 1.496m, up to 2.992m doses
- Balance of adult population
- Catch up any unvaccinated Australians from previous phases
- Phase 3: Children and young adults – estimated population of 1.177m, up to 2.354m doses
- People under the age of 18 if recommended
At this stage, the COVID-19 vaccine is voluntary and free with the federal and state government not mandating the vaccine however, you will need to wait until your designated phase is released if you wish to be vaccinated. For more information on your phase, please click the link.
Whilst all the above information can be a lot to take in, at the present time, there is no case law or other authoritative guidance on whether employers can mandate the vaccinations.
Nevertheless, in April 2020 the Fair Work Commission heard the matter of Arnold v Goodstart Early Learning Limited where an employee refused to consent to a work mandated flu vaccine. Even though the matter was dismissed as a result of the employee not meeting the strict timeframes of an unfair dismissal claim, it was found that while the employee may have had reasonable grounds to refuse to be vaccinated because of their health and/or medical conditions, the employer needed to consider its duty of care with respect of the children in its care.
With that being said, depending on the particular job and industry, some employers may be entitled at law to make the COVID-19 vaccine mandatory for their employees by considering some of the following factors:-
- Nature of employment;
- Work health and safety;
- Necessity of the vaccine;
- Relevant laws or regulations; and
- Modern award and enterprise agreements.
In addition, the Fair Work Ombudsman has suggested it would be reasonable for employers to mandate the vaccine if you either work in hotel quarantine/border control or are a health care/aged care employee.
Thus, it is likely, that employers may be able to mandate that the vaccine is taken if it is absolutely necessary to the nature of the work that they undertake, subject to the employees religious and other welfare obligations. Each employee will need to be assessed, and subject to a fair workplace policy.
Whilst the issue is still very new in the world of employment law, our highly qualified employment solicitors are here to help. Please contact our office on 07 5563 8970 for assistance.